State of New York
Department of State
Committee on Open Government

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the information presented in your correspondence.

Dear Mr. Russo:

Your letter of April 28 addressed to Secretary of State
Treadwell has been forwarded to the Committee on Open Government.
The Committee, a unit of the Department of State upon which the
Secretary serves as a member, is authorized to offer advisory
opinions concerning the Freedom of Information Law. As indicated
above, the staff of the Committee is permitted to respond on behalf
of its members.

You have sought opinions concerning the adequacy of responses
to requests directed to the Departments of Law and Environmental
Conservation.

In the case of the former, the Records Access Officer for the
Department of Law acknowledged the receipt of your request in a
timely manner and indicated that "a response to your inquiry will
be forwarded as soon as possible." You contend that the response
should have included reference to an approximate date when the
request would be granted or denied. I agree.

The Freedom of Information Law provides direction concerning
the time and manner in which agencies must respond to requests.
Specifically, §89(3) of that statute provides in part that:

"Each entity subject to the provisions of this
article, within five business days of the
receipt of a written request for a record
reasonably described, shall make such record
available to the person requesting it, deny
such request in writing or furnish a written
acknowledgement of the receipt of such request
and a statement of the approximate date when
such request will be granted or denied..."

Based upon the foregoing, I believe that agencies, in the case of
routine requests, should ordinarily have the ability to grant or
deny access to records within five business days. If more than
that period is needed, due to the possibility that other requests
have been received, that other duties preclude a quick response, or
because of the volume of a request, the need for consultation, the
search techniques needed to locate records, or the need to review
records to determine which portions should be disclosed or denied,
the Law requires that an estimated date for granting or denying a
request must be given in an acknowledgement to reflect those
factors. Those kinds of considerations may often be present,
particularly in large agencies that may have several units or
perhaps regional offices.

With respect to the latter, Malcolm A. Coutant, Regional
Attorney for Region 5 of the Department of Environmental
Conservation, wrote that your request "is too general in nature
and
that you are seeking legal research concerning the fundamental
principles of Federal and State government authority, both as it
relates to private property and the individual," and that the
Freedom of Information Law does not require that agencies conduct
legal research. Your request states as follows:

"I request certified copies of the following
public records either produced, generated,
maintained, required to be filed with or to be
in the possession of that entity addressed
above by either, Federal or State statutes,
Municipal corporation rules, regulations,
and/or ordinances:

Those powers of attorney, contracts,
agreements, letters of intent, permits,
licenses, revocations, waivers or discharge
of; Inalienable, Constitutional, Common Law
Rights or of the Uniform Commercial Codes, or
any other lawful instrument which either
bequested, gifted, granted, surrendered,
acknowledged or gave to the above identified
entity the following:

A. Title, interest, control, jurisdiction or
sovereignty to, in or over my property
being described as: Tax map lot #'s 217-1-29, 217-2-49 being in the town of
Malta, New York and declared to be part
of lot number one of the subdivision of
Lot 13 of the 5th General Allotment of
the Patent of Kayaderosseras, filed at
the Saratoga County Clerks Office located
in Ballston Spa, New York.

B. Interest, control, jurisdiction and
sovereignty to, in of and over my private
person and any and all members of my
immediate family.

C. Interest, control, jurisdiction and
sovereignty to, of and over my personal
and privacy properties.

While your intent is not completely clear, it appears that you
are requesting copies of records maintained by the agencies
pertaining to your real property, to you, or to any member of your
immediate family. If my interpretation is accurate, I believe that
the primary issue involves the extent to which the requests
"reasonably describe" the records sought as required by §89(3)
of
the Freedom of Information Law. I point out that it has been held
by the Court of Appeals that to deny a request on the ground that
it fails to reasonably describe the records, an agency must
establish that "the descriptions were insufficient for purposes
of
locating and identifying the documents sought" [Konigsberg v.
Coughlin, 68 NY 2d 245, 249 (1986)].

The Court in Konigsberg found that the agency could not reject
the request due to its breadth and also stated that:

"respondents have failed to supply any proof
whatsoever as to the nature - or even the
existence - of their indexing system: whether
the Department's files were indexed in a
manner that would enable the identification
and location of documents in their possession
(cf. National Cable Tel. Assn. v Federal
Communications Commn., 479 F2d 183, 192
[Bazelon, J.] [plausible claim of
nonidentifiability under Federal Freedom of
Information Act, 5 USC section 552 (a) (3),
may be presented where agency's indexing
system was such that 'the requested documents
could not be identified by retracing a path
already trodden. It would have required a
wholly new enterprise, potentially requiring a
search of every file in the possession of the
agency'])" (id. at 250).

In my view, whether a request reasonably describes the records
sought, as suggested by the Court of Appeals, may be dependent upon
the terms of a request, as well as the nature of an agency's filing
or record-keeping system. In Konigsberg, it appears that the
agency was able to locate the records on the basis of an inmate's
name and identification number.

While I am unfamiliar with the recordkeeping systems of the
agencies to which you referred, to extent that the records sought
can be located with reasonable effort, I believe that the request
would have met the requirement of reasonably describing the
records. On the other hand, if the records are not maintained in
a manner that permits their retrieval except by reviewing perhaps
thousands of records individually in an effort to locate those
falling within the scope of the request, to that extent, the
request would not in my opinion meet the standard of reasonably
describing the records. Further, in the context of the request, a
real question involves, very simply, where does an agency begin to
look for records. In the case of the Department of Environmental
Conservation, it is possible that records falling within the scope
of your request may be maintained at both regional and main
offices. Moreover, merely by means of a review of the portion of
the State Directory relating to that agency, it is possible that
records pertaining to your property, to you or to your family
members might be maintained by a variety of units within
Department. In some instances, records might be maintained by tax
map lot number, in others, by name, in still others by other means.
For example, correspondence between members of the public and an
office within an agency might be filed by name or perhaps
chronologically. In the latter case, there may be no feasible way
of locating records in which names or locations of property appear.

Similarly, I am unaware of the extent to which the agencies
maintain information electronically. It has been advised that if
information sought is available under the Freedom of Information
Law and may be retrieved by means of existing computer programs, an
agency is required to disclose the information. In that kind of
situation, the agency in my view would merely be retrieving data
that it has the capacity to retrieve. Disclosure may be
accomplished either by printing out the data on paper or perhaps by
duplicating the data on another storage mechanism, such as a
computer tape or disk. On the other hand, if information sought
can be retrieved from a computer or other storage medium only by
means of new programming or the alteration of existing programs,
those steps would, in my opinion, be the equivalent of creating a
new record. Since §89(3) of the Freedom of Information Law states
that an agency is not required to create records in response to a
request, I do not believe that an agency would be required to
reprogram or develop new programs to retrieve information that
would otherwise be available [see Guerrier v. Hernandez-Cuebas, 165
AD 2d 218 (1991)].

In sum, the issue in my opinion involves the extent to which
your request met the standard of reasonably describing the records
sought. It is suggested that ensuing requests be more focused and
that you include additional details wherever possible in order to
enable agency staff to locate and identify the records sought.

I hope that the foregoing serves to clarify your understanding
of the Freedom of Information Law and that I have been of
assistance.